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Enforcing consumer rights through courts - must one first exhaust all other remedies?

Section 69 of the Consumer Protection Act, No 68 of 2008 (CPA) sets out a variety of statutory remedies for the enforcement of consumer rights under the CPA. These include filing a complaint with the National Consumer Commission (Commission), referring a dispute to the Consumer Tribunal (Tribunal) or approaching an industry ombud.

Importantly, s69(d) provides that “if” a consumer has exhausted these remedies, it may then approach a court with jurisdiction to hear the dispute. What is the effect of this provision? Does it mean that the courts have to decline to hear matters where consumers approach them before, for example, filing a complaint with the Commission? Precisely this issue arose in the case of Joroy 4440 CC v Potgieter and Another NNO 2016 (3) SA 465 (FB).

The Joroy case

In this case the applicant sought the refund of the purchase price that it paid the respondent for a motor vehicle. It brought its claim before the High Court in Bloemfontein and its cause of action was based on s55 and s56 of the CPA, dealing with a consumer’s right to good quality goods and services.

The respondent took the point that the court did not have jurisdiction to hear the matter by virtue of the fact that, properly interpreted, the effect of s69(d) was that the applicant had not exhausted its other remedies provided for in s69(a) to s69(c). It was common cause that the applicant had not exhausted these remedies. The debate before the High Court thus turned on the proper interpretation of s69(d).

Section 69 of the CPA states as follows:

A person contemplated in s4(1) may seek to enforce any right in terms of this Act or in terms of a transaction or agreement, or otherwise resolve any dispute with a supplier, by:

referring the matter directly to the Tribunal, if such a direct referral is permitted by this Act in the case of the particular dispute;

referring the matter to the applicable ombud with jurisdiction, if the supplier is subject to the jurisdiction of any such ombud;

if the matter does not concern a supplier contemplated in paragraph (b):

referring the matter to the applicable industry ombud, accredited in terms of s82(6), if the supplier is subject to any such ombud; or

applying to the consumer court of the province with jurisdiction over the matter, if there is such a consumer court, subject to the law establishing or governing that consumer court;

referring the matter to another alternative dispute resolution agent contemplated in s70; or

filing a complaint with the Commission in accordance with s71; or

approaching a court with jurisdiction over the matter, if all other remedies available to that person in terms of national legislation have been exhausted.

In determining the matter the court had regard to the principle articulated by the Constitutional Court in Chirwa v Transnet Limited & Others 2008 (4) SA 367 (CC) to the effect that where a specialised framework has been created by the legislature for the resolution of disputes, parties must as a general principle pursue their claims through such frameworks.

In addition, the court had regard to the plain meaning of the word “if” as it appears in s69(d). It held that what the section contemplates is that only “if” the remedies outlined in s69(a) to s69(c) of the CPA have been exhausted (for example, the remedies of complaining to the Commission or referring a dispute to the Tribunal), will a court then exercise its discretion to hear a matter in which relief in terms of the CPA is sought. It made particular reference to the Motor Industry Ombudsman, which has been established under the CPA to adjudicate upon these kinds of disputes. The court, accordingly, refused the application.

Conclusion

As a general principle the courts do not readily find their jurisdiction to be ousted. In the Joroy case, although not expressly stated, the court essentially held that a necessary jurisdictional fact was not present for the applicant to pursue its claim, namely that it exhausted its internal remedies. It did not find that it could not in due course assert jurisdiction.

It remains to be seen whether the judgment will be interpreted as finding that there is an absolute bar to proceedings being brought to courts in cases where a party has not exhausted the other remedies provided for in s69(a) to s69(c) of the CPA. It would have perhaps been preferable for the court to have made it clear that on the facts of that particular case (where an ombud does exist to resolve precisely the kind of dispute at issue) a case had not been made out for the court to assert jurisdiction. This would have allowed for some flexibility for courts to assert jurisdiction in circumstances where, although a different remedy may exist, a court may be better placed to deal with the dispute in the first instance.